Rush University Medical Center

362 NLRB No. 163 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Rush University Medical Center and Healthcare, Pro- fessional, Technical, Office, Warehouse and Mail Order Employees Union, Local 743, Inter- national Brotherhood of Teamsters. Case 13– CA–152806 August 7, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by Healthcare, Professional, Technical, Office, Warehouse and Mail Order Employees Union, Local 743, International Broth- erhood of Teamsters (the Union) on May 22, 2015, the General Counsel issued the complaint on June 4, 2015, alleging that Rush University Medical Center (the Re- spondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 13–RC–143495. (Official notice is taken of the record in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the com- plaint, and asserting affirmative defenses. On June 18, 2015, the General Counsel filed a Motion for Summary Judgment. On June 26, 2015, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed an opposition to the Motion for Summary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its argument, raised and rejected in the representation pro- ceeding, that permitting a proliferation of elections is contrary to the Board’s Health Care Rule, Section 103.30 of the Board’s Rules and Regulations, concerning appro- priate units in acute health care facilities. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a not-for-profit corporation with an office and place of business in Chi- cago, Illinois (the Respondent’s facility), has been en- gaged in the business of operating an acute care hospital. During the calendar year preceding the issuance of the complaint, a representative period, the Respondent has derived gross revenues in excess of $250,000 from providing acute care hospital services at its facility. In that same period, the Respondent purchased and received goods and materials valued in excess of $5000 directly from entities outside the State of Illinois for use at its facility. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following self-determination elections held in two vot- ing groups on March 25 and 26, 2015, the Regional Di- rector issued two separate certifications of representative on April 16, 2015, certifying that the Union is the exclu- sive collective-bargaining representative of the supply chain tech employees employed in the Respondent’s warehouse operations department at its warehouse and the OR materials tech and supply chain tech employees employed in the Respondent’s materials management department at its main campus as part of the existing unit of nonprofessional employees that the Union currently represents:2 1 Member Johnson would have granted review in the underlying representation proceeding for the sole purpose of reviewing St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011). He agrees, howev- er, that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice proceeding and that summary judgment is appropriate. 2 The primarily nonprofessional unit is a preexisting nonconforming unit under the Board’s Health Care Rule. See Sec. 103.30(a) and (c) of the Board’s Rules and Regulations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Included: All full-time and regular part-time OR Mate- rials Tech and Supply Chain Tech employees em- ployed in the Employer’s Materials Management De- partment, Patient Care Technician (PCT) employees, environmental aides, environmental specialists, envi- ronmental technicians, dietary workers, laundry work- ers, transport specialists, elevator operators, mainte- nance employees, central service technical assistants, nursing attendants, psychiatric aides, community health aides, lab helpers, operating room attendants, mail room clerks, unit clerks, geriatric technicians, patient service associates (PSAs), physical therapy aides, reha- bilitation aides, pediatric assistants, pediatric nursing assistants, certified nursing assistants (CNAs), truck drivers (laundry & SPD), food service assistant I lead, food service assistant II lead, environmental specialist lead, transport specialist lead, unit clerk lead, and jour- neymen lead who are employed by Respondent at its main campus currently located at 1653 West Congress Parkway, Chicago, Illinois and all full-time and regular part-time Supply Chain Tech employees employed in the Employer's Warehouse Operations Department at its warehouse currently located at 2061 West Hasting, Chicago, Illinois. Excluded: Confidential employees, Nurse Assistant II (NA II) employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act, temporary and casual employees, regular part- time employees normally working less than seventeen (17) hours per week, and all other employees of the Hospital. The Union continues to be the exclusive collective- bargaining representative of the unit, including the employ- ees in the voting groups, under Section 9(a) of the Act. B. Refusal to Bargain By letters dated April 20, 2015, the Union requested that the Respondent meet to bargain collectively with it as the exclusive collective-bargaining representative of the supply chain tech employees employed in the Re- spondent’s warehouse operations department at its ware- house and the OR materials tech and supply chain tech employees employed in the Respondent’s materials man- agement department at its main campus. Since about April 20, 2015, the Respondent has failed and refused to do so.3 We find that this failure and refusal constitutes 3 Although the complaint alleges that the Union requested that the Respondent meet to bargain with it as the exclusive collective- bargaining representative of the unit and that the Respondent refused, it is clear from the record, and the Respondent admits in its answer, that the Union requested bargaining over terms and conditions of employ- an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about April 20, 2015, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the supply chain tech employees employed in the Respondent’s ware- house operations department at its warehouse and the OR materials tech and supply chain tech employees em- ployed in the Respondent’s materials management de- partment at its main campus as part of the appropriate unit, the Respondent has engaged in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Un- ion and, if an understanding is reached, to embody the understanding in a signed agreement.4 ORDER The National Labor Relations Board orders that the Respondent, Rush University Medical Center, Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Healthcare, Professional, Technical, Office, Warehouse, and Mail Order Employees Union, Local 743, Interna- tional Brotherhood of Teamsters as the exclusive collec- tive-bargaining representative of the supply chain tech employees employed in the Respondent’s warehouse operations department at its warehouse and the OR mate- rials tech and supply chain tech employees employed in the Respondent’s materials management department at its main campus in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. ment that would apply to the employees in the two voting groups, and the Respondent refused to do so. 4 The complaint and the General Counsel’s motion request that the Board require the Respondent to bargain in good faith with the Union as the exclusive representative of the unit for the period set forth in Mar-Jac Poultry Co., 136 NLRB 785 (1962). Such a remedy, however, is inappropriate where, as here, the underlying representation proceed- ing involved a self-determination election. See Winkie Mfg. Co., 338 NLRB 787, 788 fn. 3 (2003), affd. 348 F.3d 254 (7th Cir. 2003); White Cap, Inc., 323 NLRB 477, 478 fn. 3 (1997), and cases cited there. RUSH UNIVERSITY MEDICAL CENTER 3 (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the supply chain tech employees employed in the Respondent’s warehouse operations department at its warehouse and the OR materials tech and supply chain tech employees employed in the Respondent’s materials management department at its main campus as part of the following appropriate unit concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time OR Mate- rials Tech and Supply Chain Tech employees em- ployed in the Employer’s Materials Management De- partment, Patient Care Technician (PCT) employees, environmental aides, environmental specialists, envi- ronmental technicians, dietary workers, laundry work- ers, transport specialists, elevator operators, mainte- nance employees, central service technical assistants, nursing attendants, psychiatric aides, community health aides, lab helpers, operating room attendants, mail room clerks, unit clerks, geriatric technicians, patient service associates (PSAs), physical therapy aides, reha- bilitation aides, pediatric assistants, pediatric nursing assistants, certified nursing assistants (CNAs), truck drivers (laundry & SPD), food service assistant I lead, food service assistant II lead, environmental specialist lead, transport specialist lead, unit clerk lead, and jour- neymen lead who are employed by Respondent at its main campus currently located at 1653 West Congress Parkway, Chicago, Illinois and all full-time and regular part-time Supply Chain Tech employees employed in the Employer's Warehouse Operations Department at its warehouse currently located at 2061 West Hasting, Chicago, Illinois. Excluded: Confidential employees, Nurse Assistant II (NA II) employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act, temporary and casual employees, regular part- time employees normally working less than seventeen (17) hours per week, and all other employees of the Hospital. (b) Within 14 days after service by the Region, post at its facilities at 1653 West Congress Parkway, Chicago, Illinois, and 2061 West Hasting, Chicago, Illinois, copies of the attached notice marked “Appendix.”5 Copies of 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed its facilities involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 20, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 13 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 7, 2015 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Harry I. Johnson, III, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Healthcare, Professional, Technical, Office, Ware- house, and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters as the exclusive collective-bargaining representative of supply chain tech employees employed in the warehouse operations de- partment at our warehouse and the OR materials tech and supply chain tech employees employed in the materials management department at our main campus in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for supply chain tech employ- ees employed in the warehouse operations department at our warehouse and the OR materials tech and supply chain tech employees employed in the materials man- agement department at our main campus as part of the following bargaining unit: Included: All full-time and regular part-time OR Mate- rials Tech and Supply Chain Tech employees em- ployed in the Materials Management Department, Pa- tient Care Technician (PCT) employees, environmental aides, environmental specialists, environmental techni- cians, dietary workers, laundry workers, transport spe- cialists, elevator operators, maintenance employees, central service technical assistants, nursing attendants, psychiatric aides, community health aides, lab helpers, operating room attendants, mail room clerks, unit clerks, geriatric technicians, patient service associates (PSAs), physical therapy aides, rehabilitation aides, pe- diatric assistants, pediatric nursing assistants, certified nursing assistants (CNAs), truck drivers (laundry & SPD), food service assistant I lead, food service assis- tant II lead, environmental specialist lead, transport specialist lead, unit clerk lead, and journeymen lead who are employed by us at our main campus currently located at 1653 West Congress Parkway, Chicago, Illi- nois and all full-time and regular part-time Supply Chain Tech employees employed in the Warehouse Operations Department at our warehouse currently lo- cated at 2061 West Hasting, Chicago, Illinois. Excluded: Confidential employees, Nurse Assistant II (NA II) employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act, temporary and casual employees, regular part-time employees normally working less than seventeen (17) hours per week, and all other employees of the Hospital. RUSH UNIVERSITY MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/13–CA–152806 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.